S v Tomasi (CRB 171 of 2010; HH 217 of 2016) [2016] ZWHHC 217 (22 March 2016)

1 HH 217/16 CRB 171/10 THE STATE versus JEALOUS TOMASI HIGH COURT OF ZIMBABWE KUDYA J HARARE 16, 17, 18 May and 15 and 22 June and 6 July 2011 and 22 March 2016 Assessors: 1. MR S. TUTANI 2. MR. M. MUTAMBIRA Criminal Trial M. Manhamo, for the State E. Chatambudza, for the accused KUDYA J: The accused person was charged with murder. It was alleged that on 9 August 2008 at Chagadama Village, Chief Dandawa, Magunje, Karoi he unlawfully and intentionally killed Wellington Beremauro by stabbing him with a spear in the stomach and striking him with an iron bar on the head. He pleaded not guilty to the charge. The State called the oral evidence of four witnesses. These were Neverson Chishato, a member of the Neighbourhood Watch Committee, Victor Edson Tomasi, the accused’s father, Sergeant George Wachenuka, the investigating officer and Dr Manyanga, a pathologist. In addition, it produced four exhibits. Exhibit 1 was a spear with a wooden handle measuring 136 cm and weighing 1 kilogram. Exhibit 2 was the spear with a metal handle and exhibit 3 was an iron bar 66 centimeters long with a weight of 1, 160 kilograms. Exhibit 4 was the post mortem report compiled by Dr Kudzai Zimudzi. The accused person was the sole witness in his defence. In addition the evidence of Daniel Beremauro, a local resident and Sergeant Azania Bakuri of the Zimbabwe Republic Police were admitted into evidence by consent in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. Neverson Chishato was a fellow villager, a brother-in-law and a fellow member of the Neighbourhood Watch Committee of the deceased. At 4 pm on 9 August 2008 he HH 217/16 CRB 171/10 proceeded to accused’s residence. He was in the company of the deceased, the accused’s father and Pascal Zvikonyauswa. The accused, who was playing cards at a nearby homestead with eight others, was the only one who ran away as the four approached. The four were accompanied by accused’s wife and elder brother to a nearby bush. They spent 3 hours scouring the accused’s 15 bee hives in which they recovered 4 cups, 2 enamel cups, 6 plastic plates, a drip pipe and a 3 watt radio speaker. They took the property to the homestead of accused’s father, 400m away from that of accused, recorded it, packed it and left it there. At dusk, around 7pm, they walked off the homestead in a single file. In the lead was the accused’s father, followed by the deceased, the witness and Pascal and Pascal’s brother who were beside him and accused’s brother. To their left was a kitchen hut and to their right a rock. As the deceased went past the kitchen hut, the accused emerged from behind it, some 1 ½ meters away from the witness and threw a spear at the deceased striking him in the stomach. The deceased fell on his back. The witness and his other companions fled from the scene into the night in fear and panic. He later returned to the scene of crime with Pascal and others at 9 pm. He was cross examined. He denied storming the accused’s homestead with 9 other ZANU (PF) militias to assault him for belonging to the MDC. He knew the nine as fellow villagers. Some of them were the accused’s brothers and their wives. He denied burning accused’s homestead. He denied that the incident was a politically motivated one. He saw the accused emerge and throw the spear. The accused was arrested 7 days later. He implicated his elder brother Edward Tomasi and mother who were then arrested. In his closing submissions Mr Chatambudza, for the accused, correctly conceded that Neverson Chishato was a credible witness. The evidence of Neverson Chishato was confirmed to the hilt by the accused’s father. He agreed with Chishato that the accused ran away from a gambling school at a neighbour’s homestead when he saw them. He confirmed that his son threw the spear at the deceased. He was the only witness who alleged that in addition to the two spears, the accused was armed with an axe. The witness hid in the mountains from where he saw his huts ablaze. He did not know who set them alight. He spent the night in the mountains. He was arrested in order to smoke the accused out of hiding. The accused was arrested HH 217/16 CRB 171/10 six days after the incident. The only discrepancy that we discerned was the order in which the search party left his homestead when the accused threw the spear. Unlike Chishato he identified his son Edward Tomasi as trailing behind the deceased. It will be recalled that Chishato did not place Edward in the single file. We agree with both counsel that despite this discrepancy with Chishato, the father was a truthful witness. His testimony was unaffected by his filial love for his son. Again, he avoided the natural assumption that the accused was the one who burnt down his huts. We are satisfied that he was an honest and truthful witness. The investigating officer and the two witnesses whose evidence was admitted by consent confirmed that the father’s huts were burnt down. It was the uncontroverted version of the investigating officer that none of the accused’s huts were burnt down. The investigating officer received a report from the deceased’s brother Daniel Beremauro on the night of the incident and walked the 10 kilometer distance to the scene of crime where he arrived at 2 am. The corpse lay in front of the kitchen hut covered with a blanket under the protection of the deceased’s relatives and some of the villagers. He took the corpse to Chidamoyo Clinic and then to Chinhoyi hospital for post mortem. The accused was arrested seven days later. Sergeant Bakuri recorded the warned and cautioned statement from the accused that was confirmed by a magistrate. He then took the accused for indications where the two spears and an iron rod were recovered in a grassy area some 300 meters from his homestead. The head of the spear with the wooden handle, exhibit 1, was caked in dry blood. He described the injuries he saw in the same terms as the two witnesses whose evidence was admitted by consent. The post mortem report, exhibit 4, by Dr Kudzai Zimudzi described them in greater detail. The deceased sustained a huge laceration of approximately six to seven centimeters long on the forehead. Bone fragments were visible on the left side of the head. There was another laceration on the left parietoccipital area that was approximately seven centimeters long. Dr Phibeon Manyanga who was called to explain the post mortem report after the maker could not be located explained that the parietoccipital laceration stretched from the left side to the back of the head. The post mortem showed that the right eye was bruised and the right jaw was swollen. It HH 217/16 CRB 171/10 further noted the abdominal injury characterized by an entry wound on the right upper quadrant with an exit wound on the back of the left flank. Dr Zimudzi concluded that death was caused by intracranial hemorrhage secondary to the head injury and the damage to internal abdominal organs. Dr Manyanga explained that the head injuries on their own and the abdominal injury on its own could have independently caused the death of the deceased. The investigating officer disputed that the accused was a victim of politically motivated violence. He explained that the accused’s father, step-mother and elder brother were arrested after and not before the accused had been arrested after they were all implicated by the accused person. The accused confirmed that these three were arrested after he had made indications. In his defence, the accused admitted to throwing the all metal spear, exhibit 2. He, however, averred that he was acting in self defence. He stated that he is a member of the Movement for Democratic Change. On the day in question he was attacked by ten ZANU (PF) members led by the deceased and his two neighbourhood watch committee colleagues Neverson Chishato and Pascal Zvikonyauswa, Luckson Nyachuma, Edward Tomasi (accused’s elder brother) and his wife Evelyn Manzungu, Sibongile Hov